Welcome to The Forum SA. As a visitor you have read only access to the public content areas of this website. You will have to register as a member to access all content, post messages and network with our members. Membership is free and registering is quick and easy. You can click here to register now and become a member within minutes.

Does government have to comply with court orders?

Seems that government may consider itself above the law. This article on M&G refers to the situation as a "constitutional crisis".

South Africa could face "a grave constitutional crisis" that could leave judges considering whether they should "continue on the bench", the Durban High Court said on Monday.

Dismissing an appeal by the Department of Correctional Services against an execution order expediting anti-retroviral (ARV) treatment at Durban's Westville prison, Judge Chris Nicholson said: "If the government of the Republic of South Africa has given such an instruction [not to comply with the execution order] then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers.

"Should that continue the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench."

--and--

Meanwhile, the health department said on Friday that the appeal was a "matter of principle".

"It is not about [government] refusing to give people treatment," said director-general of the health department Thamsanqa Mseleku.

He said the issue was whether a court should be able to determine an aspect of government policy.

"Then what is the point of policy? If we find a facility does not meet the criteria for implementation [of an ARV treatment site] should we implement simply because a court says so?"

Ahem. It's only about the "rule of law!!"

Next thing, it'll be OK to ignore the law because you work for the government...

I see from this article on M&G that the Department of Correctional Services has responded.

The Department of Correctional Services on Wednesday rejected a Durban High Court judge's assertion that it is responsible for a potentially "grave constitutional crisis".

"The department does not agree that the decision to appeal against the orders of the Durban High Court was intended to create a constitutional crisis," the department said in a statement.

"That was not argued in court, nor can it be raised to undermine the right of the state to appeal where it is appropriate. Democracy means that we are all subject to the Constitution and the laws of the country."

I'm sure they did not intend to create a constitutional crisis - that was just a side effect of their view that policy cannot be dictated to by the law.

The department added in its statement: "Correctional services also wishes to state unequivocally that at no stage has it ever defied or ignored court orders."

Oh. So they have supplied the ARV's then.

The department said it respected the decision of the judiciary, its independence and will implement court orders.

"The department also accepts the ruling of the court regarding ... offender access to ARV therapy and treatment and will accordingly expedite the ARV treatment programme, which we have already been implementing with progressive success."

There. Doesn't that feel better. There's hope after all.

In May, the 15 inmates and the Treatment Action Campaign, represented by the Aids Law Project, filed an urgent application to compel the department to speed up ARV treatment in the prison.

On June 22 Judge Thumba Pillay granted the order, saying it applied not only to the 15, but to all inmates at the prison who required the treatment.

On July 25 Pillay granted the department leave to appeal, but ruled that it had to provide ARVs "with immediate effect" to all needy prisoners at Westville pending the outcome of the appeal.

Referring to its ARV therapy and treatment programme, the department said it was on course "to facilitate the accreditation" of Durban Westville Prison as an "ARV site".